JUDGMENT :

DR. D.P. CHOUDHURY, J.

1. These three Misc. cases are taken together for disposal as all these petitions relate to substitution of respondent no.7. So they are being disposed of by this common order.

2. Before going to discuss on the petitions, the story of the plaintiffs needs little elaboration. One Nabaghana Patel being the common ancestor had three sons namely, Iswara, Uchhab and Hari. Rebati is his wife. Nabaghana and Rebati died leaving behind his sons Iswara, Uchhaba and Hari. These brothers and their wives are also dead. Plaintiff no.1 is the son of Iswara. Plaintiff nos.2 to 6 are the sons of Uchhaba. Defendant no.1 is the daughter of Hari. There was no partition of the ancestral suit property between Iswara, Uchhaba and Hari, and during jointness Hari allegedly died on 6.9.1947 leaving behind his widow Bedamati and daughter Betikhai who is appellant before this Court. Bedamati got married to one Ajin Patel. At that time defendant no.1 was minor being brought up by Iswara and Uchhaba who got her married to Jadumani Rout. It is the case of the plaintiffs that father of defendant no.1 died in jointness before 1956. She has no share in the ancestral suit property, but her name was recorded in respect of the suit property in the settlement R.O.R., on their application her name was deleted by the Additional Tahasildar. Against such order, defendant no.1 filed appeal before the Sub-Collector, who allowed the appeal. The plaintiffs filed suit for declaration of right, title and interest of the plaintiffs and defendant nos.2 to 6 and further declaration that defendant no.1 has no right, title and interest thereon. That suit was dismissed against defendant no.1.

3. The appeal was filed before the appellate Court. Learned District Judge, after hearing both parties, set aside the judgment and decree passed by the learned trial court and as such, the right, title and interest of the plaintiffs and defendants 2 to 6 were declared and defendant no.1 has no right, title and interest thereon. Against such appellate order, defendant no.1 filed the present Second Appeal on 11.4.2011 with a petition for condonation of delay under section 5 of the Limitation Act.

4. While the matter stood thus, learned counsel for the appellant filed Misc. Case No.434 of 2015 with a prayer to condone the delay for substituting the legal heirs of respondent no.7, who admittedly died on 2.12.2011 on the ground that the appellant-petitioner while had come to regular medical check up to Bolangir, met one Sulochana Patel, who is daughter of respondent no.7 informed that respondent no.7 died on 2.12.2011. Similarly, she filed Misc. Case no.435 of 2015 to allow the substitution by bringing the legal heirs of the respondent no.7. Besides, another petition is filed by the appellant vide Misc. Case No.436 of 2015 praying to set aside the abatement of the appeal against respondent no.7. All these three petitions were filed on 14.5.2015.

5. Respondents 1 to 6 filed common objection to the aforesaid Misc. Cases. In their objection they admitted that respondent no.7 died on 2.12.2011 leaving behind her legal heirs. They refuted the contention of the appellant that the death of respondent no.7 was not within her knowledge and only after meeting the daughter of respondent no.7 on her way to hospital on 10.5.2015 for medical checkup, came to know about her death. It is specifically stated by respondents 1 to 6 that the appellant had attended the funeral rites and Ekadasah of respondent no.7 and as such the appellant had every knowledge about the death of respondent no.7, but has suppressed the same material facts in her petitions which amply show her negligent attitude.

6. In the objection it is specifically stated that neither the appellant brought the substitution petition within 90 days of the death of respondent no.7 nor brought it within further 60 days to set aside the abatement although the death of respondent no.7 was within her knowledge. Since the appellant